TMI Blog2023 (11) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... f the like amount, to the satisfaction of the Learned Trial Court/Link Court, further subject to the conditions imposed - application allowed. - MR. AMIT SHARMA, J. Shri Vikas Gautam, Advocate, for the Petitioner. S/Shri Satish Aggarwala, Senior Standing Counsel with Gagan Waswami and Ms. Ayushi Mamgain, Advocates, for the Respondent JUDGMENT This is the second application filed on behalf of Dhirendra Prakash Saxena, the applicant, under Section 439 of the Code of Criminal Procedure, 1973 ( CrPC ) seeking grant of regular bail in Sessions Case No. 7520/2016 under Sections 25, 25A, 29 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act ) titled Directorate of Revenue Intelligence v. Dhirendra Prakash Saxena and Ors. , pending trial before the Court of the Learned Special Judge (NDPS), South District, Saket. 2. The first application seeking regular bail filed on behalf of the present applicant was dismissed as withdrawn vide order dated 27-5-2022 passed by a Coordinate Bench of this Court in BAIL APPLN. 2004/2016, titled Dhirendra Prakash Saxena v. DRI . It was observed as under : 2.0 Learned Counsel for the applicant submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Lakhsya Traders and the key of the above said premises is with the applicant. Thereafter, the applicant handed over the key of the said premises which was initially found locked by officers of the DRI. (iv) Upon search of the premises M/s. Lakshya Traders, it was found stocked with white plastic bags, cardboard boxes as well as some carry-bags containing a white granular powdery substance. Manoj Kumar Nayak identified 45 cartons which were received under the aforesaid invoice and GR No. ARL 9630. He further informed that he had opened 11 cartons and transferred the white granular substance from those 11 cartons to 11 carry bags out of which one had already been delivered to some person. The white granular powdery substance found in 10 carry bags weighing 25 kg. each was tested with a field detection kit and same tested positive for Pseudoephedrine . Thus in total, 250 kg. of Pseudoephedrine was recovered from the premises of M/s. Lakshya Traders. (v) Thereafter, on 19-9-2015, a team of DRI searched the factory premises of M/s. G.T. Biopharma owned by Sanjay Bhartia, from where 3 drums of Ketamine Hydrochloride IP weighing 75.370 kg. were recovered in addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the applicant submitted that the only piece of evidence connecting the present applicant to the recoveries effected in the present case is the statements of the latter and other co-accused persons recorded under Section 67 of the NDPS Act which in any case, are not admissible as per the verdict of the Hon ble Supreme Court in Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31 = 2018 (363) E.L.T. 3 (S.C.). It was submitted that no incriminating substance was recovered from the applicant or from his business premises, i.e., M/s. Weishorn Biotech. 6. It was submitted that out of the 53 witnesses cited by the prosecution, only 13 have been examined so far and the trial is likely to take a long time. 7. Learned Counsel appearing on behalf of the applicant further submitted that co-accused Rakesh Kumar Bhola and Manoj Kumar Nayak have already been granted bail vide orders dated 19-10-2022 (BAIL APPLN. 216/2020) and 11-11-2022 (BAIL APPLN. 3011/2022) passed by Coordinate Benches of this Court. It was further submitted that co-accused Inder Pal Singh Chawla was granted bail by the Learned Special Judge, NDPS, South District, Saket vide order dated 19-5-2016, passed in Sessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Nayak, wherein it has been observed that It is thus seen that D.P. Saxena is the main accused and the present applicant was co-conspirator. 12. It was submitted that the applicant had given a premium of Rs. 35 lakhs in cash to co-accused Yogesh Shah via an aangadiya firm. The said cash was also recovered and seized from the residence of Yogesh Shah. It was submitted that the applicant was coordinating the supply of controlled substances between M/s. Dhari Chemicals and M/s. Daffohils Laboratories Pvt. Ltd. and between M/s. G.T. Biopharma and Redic Labs Ltd. and received a commission for the same. Learned Sr. SC further submitted that the consignment of Pseudoephedrine which was seized from M/s. Lakshya Traders was paid for in cash. 13. It was further submitted that as per the bank statements of M/s. Lakshya Traders, co-accused Manoj Kumar Nayak and Rakesh Kumar Bhola made multiple cash deposits and payments were also made to M/s. G.T. Biopharma. It was submitted that even though M/s. Lakshya Traders was owned by Manoj Kumar Nayak, the actual control of the business was with the applicant. Learned Sr. SC submitted that a scrutiny of the bank statements of M/s. Weish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said contention reliance was placed on the verdict of the Hon ble Supreme Court dated 19-7-2022 in CRL.A Nos. 1001-1002/2022 titled Narcotic Control Bureau v. Mohit Aggarwal, 2022 (381) E.L.T. 437 (S.C.). 17. It was further submitted that upon expiry of the interim bail granted to him, the applicant did not surrender on time and has not given any satisfactory explanation as to based on which order/notification/direction he continued to be on interim bail until he was made to surrender by this Court. 18. Learned Sr. SC placed reliance on the following judgments : (i) Union of India (NCB) v. Khalil Uddin, Judgment dated 21-10-2022 in Criminal Appeal Nos. 1841-1842 of 2022. (ii) State of Kerala Etc. v. Rajesh, Judgment dated 24-1-2020 in Criminal Appeal Nos. 154-157 of 2020. (iii) Narcotic Control Bureau v. Mohit Aggarwal, 2022 Crl.LJ 3422. (iv) Union of India v. Md. Jamal, Order dated 6-5-2022 in Criminal Appeal No. 752 of 2022. (v) Union of India v. Rattan Mallik alias Habul, (2009) 2 SCC 624. (vi) Satpal Singh v. The State of Punjab, Judgment dated 27-3-2018 in Criminal Appeal No. 463 of 2018 [2018 (360) E.L.T. 791 (S.C.)]. (vii) N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. Kala Amb are accused Nos. 8, 7 and 9 respectively. (iii) M/s. Daffohils Laboratories Pvt. Ltd. Selaqui, Dehradun, accused no. 10, - 25 kg. of white granular powdery substance declared to be Pseudoephedrine hydrochloride, a controlled Substance under the NDPS Act, 1985 by Shri Preet Pal Singh Chawla, accused no. 12, on chemical analysis revealed to be chalk powder which establishes manipulation and fabrication and falsification of statutory records. Shri Inder Pal Singh Chawla, Managing Director and Shri Preet Pal Singh, Director of M/s. Daffohils Laboratories Pvt. Ltd., F-109-110, UPSIDC Industrial Area, Scalqui, Dehradun are accused no. 1l and 12 respectively. (iv) Vadodara (a) Recovery and detention of 1000 kg. Pseudoephedrine Hydrochloride and 175 kg., Ephedrine both controlled substances under the NDPS Act, 1985 at the godown premises of M/s. Dhari Chemicals, G/2, Laxmi Apartment, Kadam Nagar, Nizampura, Vododara of which Shri Yogesh Shah, accused No. 5, is the proprietor, which were intended for dispatch to M/s. G.T. Biopharma Pvt. Ltd., Kala Amb and M/s. Daffohils Laboratories Pvt. Ltd., Dehradun under panchnama dated 19-8-2015. The detained 1000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Traders. It is the case of the prosecution that the said injections were further shown to be sold by M/s. Lakshya Traders to M/s. Nath medicos, M/s. Triveni Medicos, M/s. Dinesh Medicos and M/s. Pinaire Medicos. It is alleged that in their statements recorded under Section 67 of the NDPS Act, the proprietors of the aforesaid firms denied having purchased the said injections from M/s. Lakshya Traders. Since, it is the case of the prosecution that the present applicant was the de facto owner of M/s. Lakshya Traders, therefore the receipt of the said injections and their clandestine supply to unknown persons would attract the rigours of Section 37 under the NDPS Act with respect to the present applicant. 24. On the other hand, Learned Counsel appearing on behalf of the applicant submitted that in absence of any recovery with respect of the aforesaid injections, the prosecution does not have a leg to stand on with respect to the aforesaid allegation. 25. It is pertinent to note that even if it is assumed for the sake of argument that the present applicant was the de facto owner of M/s. Lakshya Traders, even then, the seizure of certain documents showing receipt and further sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity before the Learned Trial Court. 28. The present applicant was arrested on 21-8-2015 and the complaint was filed citing 53 witnesses, although only 13 of them have been examined so far. It is further pertinent to note that all other co-accused persons, except for the present applicant and Sultan Ansari, have been granted bail. Two of the co-accused persons are stated to have been declared proclaimed offenders. Charges qua the present applicant have been framed under Sections 22, 25A and 29 of the NDPS Act and the said order on charge has been challenged by way of a revision petition pending adjudication before this Court. The trial is likely to take a long time. 29. Section 25A of the NDPS Act provides as under : 25. Punishment for allowing premises, etc., to be used for commission of an offence. - If any person contravenes an order made under section 9A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees : Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding one lakh rupees. The aforesaid section pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us other decisions involving controlled substances and observed as under : 6. During the course of arguments, it was fairly conceded by Learned Counsel for the respondent that bar of Section 37 of the NDPS Act is not attracted in the present case since as per the prosecution 100 kgs. of Pseudoephedrine was recovered which is a controlled substance within the meaning of Section 2(vii)(b) of the Act. Pseudoephedrine is not a narcotics drug as envisaged under section 2(vii)(a) of the Act. In N.C. Chellathambi (supra) one tonne of ephedrine was recovered, in Ajay Aggarwal (supra) recovery was of 1600 liters of Acctic Anhydride, in Rajiv Kumar @ Sukha (supra) recovery was of 25 kgs. powder ephedrine hydrochloride, in Faiyaz Ahmed Rasool Shaikh (supra) and another recovery was of 290 kgs. of pseudoephedrine, in Chakrapani Dutt (supra) recovery was of 100 liters of Acctic Anhydride, and in all these cases since the accused had remained in custody for certain period, they were released on bail.... In N.C. Chellathambi v. N.C.B., a Coordinate Bench of this Court, vide order dated 20-4-2005, granted bail to the applicant in a case of recovery of Ephedrine - a controlled substance. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Niranjan Jayantilal Shah (supra), a Coordinate Bench of this Court granted bail to the applicant therein and observed as under : 10. As noticed above, the petitioner has been in custody for nearly 22 months. The decision rendered by this Court in Niranjan Jayantilal Shah (supra) shows that in cases where quantity of the controlled substance recovered was even much larger, the Court had granted bail to the accused considering the period for which they had remained in custody during the trial. Accordingly, the present application is allowed. 11. The petitioner is directed to be released on bail upon his furnishing personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the trial court. The petitioner shall not leave the country without prior permission of the trial court. He shall surrender his passport, if any, before the trial court. During the pendency of the appeal, the petitioner shall not contact or try to influence any of the witness, and shall not indulge in any similar activity. He shall not cause any delay in the progress of the trial. Similarly, in Tinimo Efere Wowo v. State Govt. of NCT of Delhi, 2022 SCC OnLine D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del 7830. Therefore, as mentioned hereinabove, in view of the recovery of Pseudoephedrine, which is a controlled substance and the aforementioned precedents, this Court is of the opinion that Section 37 of the NDPS Act will not be attracted in the present case as the allegations with respect to the present applicant are covered under Section 25A of the NDPS Act. 33. In view of the facts and circumstances of the present case, the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- along with two sureties of the like amount, to the satisfaction of the Learned Trial Court/Link Court, further subject to the following conditions : (i) The memo of parties shows that the applicant resides at B-101, Hindon Apartment, Vasundhra Enclave, Delhi. In case of any change of address, the applicant is directed to inform the same to the Investigating Officer and the concerned Learned Trial Court. (ii) The applicant shall report at the office of the DRI twice in a week, i.e., on every Tuesday and Friday at 10:30 AM and the concerned officer is directed to release him by 11:00 AM after recording his presence and completion of all the nece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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